U.S. Federal Labor Relations Authority

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15:0049(10)NG - Laborers International Union Local 1276 and Defense Logistics Agency, Defense Depot Tracy, Tracy, CA -- 1984 FLRAdec NG

[ v15 p49 ]
The decision of the Authority follows:

 15 FLRA No. 10
                                       Case No. O-NG-647
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 relating to the negotiability of two Union proposals.  /1/ Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
                             Union Proposal 1
          If licensed, will only operate material handling equipment such
       as forklift, vacuum lift, and small gantry only in the absence of
       a qualified operator and only to accomplish the immediate work
    The record indicates that the two proposals herein were offered in
 response to the implementation by the Agency of a new position
 description for the "packer" position.  Among the duties described in
 the new description is one involving the operation of materials handling
 equipment, including the machinery listed in Union Proposal 1.  The
 Union describes the purpose of its proposals as preventing "any
 misunderstanding" concerning when a packer could be assigned to operate
 materials handling equipment.  Moreover, the Union asserts that Union
 Proposal 1 is consistent with the Office of Personnel Management (OPM)
 Job Grading Standard for Packer which makes no reference to operation of
 materials handling equipment nor "does it allow for dual title of Packer
 Forklift Operator."
    Union Proposal 1, however, by limiting the operation of materials
 handling equipment by packers only to those times when a "qualified
 operator" is unavailable, is to the same effect as the proposal which
 the Authority found to be inconsistent with the management right,
 pursuant to section 7106(a)(2)(B) of the Statute, "to assign work" in
 National Labor Relations Board Union, Local 19 and National Labor
 Relations Board, Region 19, 2 FLRA 775 (1980).  The Authority concluded
 that the proposal in that case, which conditioned the assignment of
 specified work to one employee upon the absence of another employee,
 "would eliminate the discretion inherent in management's right to assign
 work(.)" Hence, based upon National Labor Relations Board, Region 19,
 and the reasons and case cited therein, Union Proposal 1 herein is
 likewise outside the duty to bargain.
    As to the Union's assertion that Union Proposal 1 is consistent with
 the applicable OPM Job Grading Standard, in that the standard does not
 include operating materials handling equipment among the duties of the
 packer occupation, it is noted that OPM states its "standards do not
 prescribe agency organization of work or the content of positions." /2/
 Thus, the absence of a specific duty among those listed for a particular
 function in the standard for an occupation does not preclude the
 assignment of such unlisted duty to an employee.  In any event, matters
 relating to the classification of positions are excluded from the
 definition of "conditions of employment" by section 7103(a)(14)(B) of
 the Statute and are outside the duty to bargain.
                             Union Proposal 2
    No incidental licensing will become a requirement in either selection
 or performance appraisal.
    Union Proposal 2 attempts to limit the qualifications requirements
 that the Agency may establish in rating candidates for vacancies in the
 packer occupation.  In this respect, the proposal is to the same effect
 as the Union Proposals which were before the Authority in National
 Federation of Federal Employees, Local 1332 and U.S. Army Materiel
 Development and Readiness Command (DARCOM), 3 FLRA 200 (1980).  The
 Authority found the proposals in that case, which sought to prescribe
 the training, experience, and qualifications to be possessed by
 employees assigned as alcohol and drug abuse counselors, to be intended
 to determine the "types" of employees who could be assigned as
 counselors.  Therefore, it was concluded that the proposals were
 negotiable only at the agency's election pursuant to section 7106(b)(1)
 of the Statute.  In like manner, Union Proposal 2, herein, seeks to
 bargain over the types of employees who may fill packer positions by
 preventing possession of a license to operate materials handling
 equipment from being a qualification requirement for the positions.
 Consequently, since the Agency has elected not to bargain on the
 proposal it is not within the duty to bargain.
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.
    Issued, Washington, D.C., June 8, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ The Agency's motion to dismiss the petition for review, based on
 the Union's failure to request in writing an allegation of
 nonnegotiability, is hereby denied.  It is now well established that a
 union may properly initiate a timely negotiability appeal to the
 Authority upon receipt of an unsolicited written allegation of
 nonnegotiability from the agency.  See, e.g., New York State Nurses
 Association and Veterans Administration Medical Center, Bronx, New York,
 11 FLRA No. 94 (1983).
    /2/ Federal Personnel Manual Supplement 512-1, Job Grading System for
 Trades and Labor Occupations, Part 1, Explanation of Job Grading System,
 (1981), p.8.